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Validity and Effects of Contracts in the Conflict of Laws, 30 Yale Law Journal 655 (1921)

Abstract

LAW GOVERNING THE INTRINSIC VALIDITY OF CONTRACTS

Notwithstanding the above array of authorities, both; continental and Anglo-American, in support of the intention theory, it is open to serious criticism, so far as it is applied to the intrinsic validity of contracts. "Wide as the operation necessarily is which is given to the intention of the parties to a contract," says Foote, "it is plain that it can have no effect upon the question of the legality or illegality of the thing contracted for. No law can permit itself to be evaded, nor can it, consistently with the principles of international jurisprudence, sanction the evasion of a foreign law. Thus, if the thing contracted to be done is illegal by the law of the place of the intended performance, the contract should be held void; wherever it was actually entered into, by all courts alike." Foote concludes, therefore, that· the legality of a contract depends generally upon the law of the place of intended performance, but that the legality of the making of the agreement, i. e., giving a particular consideration for a particular promise, is controlled by the lex loci actus.